No. 11-398 THE
Supreme Court the United States
UNITED STATES DEPARTMENT HEALTH
AND HUMAN SERVICES, AL.,
Petitioners,
STATE FLORIDA, AL.,
Respondents. Writ Certiorari the United States
Court Appeals for the Eleventh Circuit
BRIEF JUDICIAL WATCH, INC. AMICUS CURIAE SUPPORT
RESPONDENTS THE MINIMUM
COVERAGE PROVISION
Paul Orfanedes
Counsel Record
JUDICIAL WATCH, INC. 425 Third Street, S.W., Ste. 800 Washington, 20024 porfanedes@judicialwatch.org
(202) 646-5172
Counsel for Amicus Curiae
QUESTION PRESENTED
The question presented whether the Minimum Coverage Provision the Affordable Care Actexceeds Congress powers under Article theConstitution.
TABLE CONTENTS
QUESTION PRESENTED .........................................
TABLE CONTENTS ............................................
TABLE AUTHORITIES ..................................... iii
INTEREST THE AMICUS CURIAE ...................1
SUMMARY ARGUMENT ....................................2
ARGUMENT ...............................................................2
Petitioners Must Look the Commerce
Clause for Authority Pass the Minimum
Coverage Provision Because Cannot
Retroactively Declare Penalty Tax ...............................................................3
II.
The Commerce Clause Cannot Provide
Authority Pass the Minimum Coverage
Provision Because Allow Such Authority
Would Transform the Federal Government
Into One Unlimited Powers .....................10
CONCLUSION..........................................................19
TABLE AUTHORITIES
CASES
Heart Atlanta Motel, Inc. U.S.,
379 U.S. 241 (1964) ............................................
Marbury Madison, U.S. 137 (1803) ................................................
NLRB Jones and Laughlin Steel Corp.,
301 U.S. (1937) .......................................... 12,
Printz Mack,
521 U.S. 898 (1997) ............................................
Seven-Sky Holder,
661 F.3d (D.C. Cir. 2011) ................................
Wickard Filburn,
317 U.S. 111 (1942) ................................ 13, 14,
U.S. Franca,
282 U.S. 568 (1931) ..............................................
U.S. Lopez,
514 U.S. 549 (1995) .................... 11, 12, 14, 18,
U.S. Morrison,
529 U.S. 598 (2000) ............................................
STATUTES AND CONSTITUTIONAL PROVISIONS
U.S. CONST. art. cl. ............................... 10,
U.S. CONST. amend. ....................................... 11, U.S.C. 5000A(b)(3) .............................................. U.S.C. 7421(a).. .................................................... U.S.C. 18091(1). ................................................... U.S.C. 18091(2)(A). ..............................................
LEGISLATIVE MATERIALS
Americas Affordable Health Choices Act 2009, H.R. 3200, 111th Cong. (2009) ..........
Affordable Health Care for America Act,
H.R. 3962, 111th Cong. (2009) ............................
Americas Healthy Future Act, 1796,
111th Cong. (2009) ...........................................
MISCELLANEOUS
Barack Obama, Remarks Dover, New
Hampshire, September 12, 2008) ....................
Matt Cover, When Asked Where the Constitution Authorizes Congress Order Americans Buy Health Insurance, Pelosi says Are You Serious?, CNSNews (Oct. 22, 2009) ....................................................
News Transcript: ABC News, This Week with President Barack Obama
(September 20, 2009) .......................................
Randy Barnett, The Original Meaning the Commerce Clause, Chi. Rev. 101 (2001) ..................................................
INTEREST THE AMICUS CURIAE1
Judicial Watch, Inc. non-partisan,educational foundation that seeks promote transparency, integrity, and accountability government and fidelity the rule law. Judicial Watch regularly files amicus curiae briefs means advance its public interest mission and has appeared amicus curiae this Court number occasions.
Amicus concerned about the importantquestions constitutional interpretation and the proper balance power between the several statesand the federal government. This case also raises important questions about the consistency and transparency the federal governments position whether act passed Congress constitutes tax.Specifically, Judicial Watch has undertaken research whether Congress may mandate that individual who does not purchase health insurancedo so. Judicial Watch has also examined whether the federal government has been transparent andaccountable its positions taxes the PatientProtection and Affordable Care Act. Pursuant Supreme Court Rule 37.6, amicus states that counsel for party authored this brief whole part; andthat person entity, other than amicus and his counsel, made monetary contribution intended fund the preparationand submission this brief. All parties have consented thefiling this brief; letters consent have been lodged with theClerk.
SUMMARY ARGUMENT
Petitioners argue that the Minimum Coverage Provision the Patient Protection and Affordable Care Act 2010, which requires nearly all Americans purchase health insurance, tax that the Court may uphold under Congress broadtaxing powers. However, Congress drafted and passed the Minimum Coverage Provision mandate with penalty for failure comply, not tax. Petitioners argument that the Minimum Coverage Provision tax therefore fails. uphold the law, Petitioners must show thatCongress had authority pass the Minimum Coverage Provision under its Commerce Clause power, but the Court allows Congress so, itmust willing hold that Congress powers underthe Commerce clause are plenary and unlimited, for there remains principled way limit Congresspower stretched far Petitioners ask.
ARGUMENT
Petitioners are trying defend provision anact passed Congress that exceeds its enumerated powers. Though Congress enacted this provision under the Commerce Clause, Congress power underthe clause not broad enough compel Americansto engage commerce purchasing particularproduct. Though Petitioners try rescue theprovision arguing that valid under Congresstaxing power even invalid under Congresscommerce power, provision act that not tax may not construed tax merely save itfrom being declared unconstitutional. Petitioners Must Look the Commerce Clause for Authority Pass the Minimum Coverage Provision Because They Cannot Retroactively Declare Penalty Tax.
According Petitioners, the same provision that can classified penalty when there political price pay for raising taxes can take the classification tax when needed survive court challenge. The federal government now argues thatthe Minimum Coverage Provision the PatientProtection and Affordable Care Act (the PPACA) isa tax because operates the same way tax and produces revenue like tax. Petitioners encourage the Court ignore the text the law, which calls the Minimum Coverage Provision apenalty, not tax, when convenient for Petitioners. the same time, Petitioners take the positionthat the Court has jurisdiction decide the constitutionality the Minimum Coverage Provision now, although that position implies that the Minimum Coverage Provision not tax. the Minimum Coverage Provision were tax, the Anti-Injunction Act (AIA) would bar the Court from either striking down upholding the provision before takes effect, which this case would the year 2015. See U.S.C. 7421(a). Petitioners claim their brief:
[t]he AIA applies suits restrain theassessment collection any tax. The payment under the Affordable Care Actsminimum coverage provision is, however, termed penalty rather than tax, and itis not within the category tax penaltiesthat trigger the AIAs jurisdictional bar.
(Petitioners Anti-Injunction Act Brief 6).Petitioners, along with Respondents, want see theCourt rule the constitutionality the Minimum Coverage Provision now rather than three years.Petitioners therefore argue, this context, that the Minimum Coverage Provision does not meet thedefinition any tax. But arguing the issue ofthe constitutionality the Minimum Coverage Provision itself, Petitioners claim that tax after all because revenue-raising provision bearing many indicia taxation. (PetitionersMinimum Coverage Provision Brief 53).Petitioners may not have both ways.
During the charged political atmosphere prior tothe laws passage, both chambers Congress andthe President wanted avoid raising taxes most Americans order pay for changes the health care system. Only the year before, during thepresidential campaign, then candidate Obama had made firm promise not so. For instance, September 12, 2008, rally New Hampshire, Mr. Obama stated: and can make firm pledge. Under plan, family making less than $250,000 year will see any form tax increase. Not your income tax, not your payroll tax, not your capitalgains taxes, not any your taxes. Barack Obama, Remarks Dover, New Hampshire, (September 12, 2008), http://www.presidency.ucsb.edu. Raisingtaxes such families part the health care reform bill also was something congressionalsupporters the health care bill wanted avoid.
President Obama himself proclaimedemphatically that insurance mandate not tax. interview with ABC News, This Week with George Stephanopoulos, September 20, 2009,President Obama responded GeorgeStephanopoulos assertion that the Minimum Coverage Provision was tax increase stating:
No. Thats not true, George. The for tosay that you've got take responsibility get health insurance absolutely not tax increase. What its saying is, that we're notgoing have other people carrying your burdens for you anymore than the fact thatright now everybody America, just about,has get auto insurance. Nobody considers that tax increase. People say themselves, that fair way make surethat you hit car, that I'm not coveringall the costs.
News Transcript: ABC News, This Week with President Barack Obama (September 20, 2009), athttp://abcnews.go.com. When Stephanopoulos thensaid, you reject that its tax increase? President Obama answered: I absolutely reject that notion. Id. the President described the Minimum Coverage Provision, not tax, but punishmenton those who not carry health insurance. Such people are, this calculation, doing something wrong attempting shift their own costs other people. The punishment not severe one, being only monetary penalty rather than deprivation ofany other rights privileges, but punishment isstill punishment even relatively light one.
With these positions taken publicly, nosurprise that the language the Minimum Coverage Provision explicitly described the provision penalty, regulation, not tax, grounded inCongress commerce powers, not its tax powers. The congressional findings accompanying the Minimum Coverage Provision declare that the requirement substantially affects interstate commerce.
U.S.C.
18091(1). The PPACA also states that the requirement regulates activity that commercialand economic nature. Id. 18091(2)(A).Failure obtain the mandated health insurance coverage required the Minimum CoverageProvision results the payment penalty.
U.S.C.
5000A(b)(3). The choice the word penalty rather than the word tax was deliberate choice; earlier versions the bill the House Representatives and the Senate used the word tax. See Americas Affordable Health Choices Act 2009, H.R. 3200, 111th Cong. (2009);Affordable Health Care for America Act, H.R. 3962,
111th Cong. (2009); and Americas Healthy FutureAct, 1796, 111th Cong. (2009). The change wasclearly deliberate.
The concept regulatory penalties distinctfrom taxes not itself departure from recognized precedent. the Court stated U.S. Franca: tax enforced contribution provide for the support government; penalty is exaction imposed statute punishment for unlawful act. The twowords are not interchangeable, one for theother. mere exercise the art lexicography can alter the essential nature act thing; and exaction beclearly penalty cannot converted intoa tax the simple expedient calling such.
282 U.S. 568, 572 (1931). Thus, the publicly stated purpose the Minimum Coverage Provision veryappropriately comports with the traditional definition penalty. Contrary Petitioners arguments, the Minimum Coverage Provision operates penalty; does not operate tax law. (Petitioners Minimum Coverage ProvisionBrief 52). What unprecedented about thepenalty that, generally when Congress penalizes American citizens, the punishment for actionthat Congress disapproves, not simply for lack ofaction.
The Court should not ignore the actual text ofthe law, which defines the Minimum CoverageProvision penalty, classify the provision tax. Congress clearly demonstrated the intent not topass tax when drafted and passed the bill thatbecame the PPACA. Congress voted and enacteda penalty, not tax. The bill ultimately passed theSenate without single vote spare, suggestingthat Congress needed structure the MinimumCoverage Provision penalty. That Congresstaxing power may broader than its CommerceClause power cannot change Congress intent asreflected the plain language the statute.Principles statutory construction not allowPetitioners recharacterize that intent after the fact. can seen from their brief the Anti-Injunction Act Issue, even Petitioners agree withthis analysis, when their legal position allows themto without adverse consequence.
Once the PPACA was enacted, the proponents the new law changed tactics. Before passage, the fate the PPACA depended politics, not law. that time, the Minimum Coverage Position wasemphatically not tax. court, the status the Minimum Coverage Provision has become morecomplicated: penalty for the purposes theAnti-Injunction Act, but tax for the purposes ofCongress taxing power.
The provisions sometimes status taxdates the time when the PPACA was first challenged the district courts. Petitioners, who were the defendants cases filed many jurisdictions, began adopt its litigation stance the argument that the Minimum Coverage Provision was tax after all. For instance, its memorandum support Defendants Motion for Summary Judgment the Eastern District ofVirginia, Petitioners took the position that, becausethe Minimum Coverage Provision raises revenue, exercise Congress independent power underthe General Welfare Clause: [i]ndependent its Commerce Clause authority, Congress vested withthe Power lay and collect Taxes, Duties, Imports, and Excises, pay the Debts and provide for thecommon Defense and general Welfare the United States. (Defendants Motion for SummaryJudgment 39, Commonwealth rel. Cuccinelli Sebelius, Case No. 3:10CV188 (E.D. Va. 2010)). For purposes their brief before this Court the Minimum Coverage Provision, Petitioners continue take this position despite its uneasy coexistence with their position that the Anti-Injunction Act doesnot apply the Minimum Coverage Provision.
The Minimum Coverage Provision was drafted toregulate the choices Americans directly ratherthan affect their choices offering tax incentives. Although Petitioners point out that the MinimumCoverage Provision has the effect raising revenue, the purpose the provision was explicitly not toraise revenue, but force Americans buyinsurance. Thus, wanting compel Americans tobuy health insurance, Congress passed law that made illegal not so. Congress also appearedto have doubts about its power enact such mandate the time passage. October 22, 2009, the then Speaker the House Representatives, Nancy Pelosi, was asked press conference CNSNews reporter: Madam Speaker, where specifically does the Constitutiongrant Congress the authority enact individualhealth insurance mandate? response, SpeakerPelosi asked the question: Are you serious? Are you serious? Matt Cover, When Asked Where the Constitution Authorizes Congress Order Americans Buy Health Insurance, Pelosi says Are You Serious?, CNSNews (October 22, 2009), athttp://cnsnews.com. Petitioners alternate argument, however, also fatally flawed.
II. The Commerce Clause Cannot Provide Authority Pass the Minimum Coverage Provision Because Allow Such Authority Would Transform the Federal Government Into One Unlimited Powers.
Petitioners have taken the position that theMinimum Coverage Provision tax because theyunderstand that, not, this Court can onlyuphold the provision willing now what has never been willing before, which declareCongress regulatory authority withouteffective bounds. U.S. Morrison, 529 U.S. 598, 608 (2000). Congress grounded its constitutionalauthority pass the Minimum Coverage Provision the interstate commerce clause Article III the Constitution, which states: The Congress shall have Power [t]o regulate Commerce with foreign Nations, and among the several States. U.S. CONST. art. cl. Petitioners argue that the Minimum Coverage Provision valid exercise ofCongress Commerce power because integral part comprehensive scheme economic regulation that regulates economic conduct with substantial effect interstate commerce. (Petitioners Minimum Coverage Provision Brief at24 and 33.) However, the Commerce power cannotbe broad enough encompass the authority forceAmericans who have engaged activities that affect interstate commerce purchase product from another private party. Americans who have engaged activity all cannot said have engaged activity that affects interstate commerce. Such decree exceeds Congressauthority even the requirement purchase thatproduct part scheme economic regulation,and the purchases once made have substantialeffect interstate commerce. the Court accepted such argument would not only have extend the power the Commerce Clause farther than ithas ever been extended before but would have principled basis provide any limitation theauthority the commerce clause all. Under present precedent, that the Court may not do.
The federal government acknowledged allto one enumerated power the enumeration presupposes something not enumerated. U.S. Lopez, 514 U.S. 549, 566 (1995) (citations omitted).The Tenth Amendment also makes clear that the federal government does not exercise plenary power, neither over the states nor the people, when itstates: the powers not delegated the UnitedStates the Constitution, nor prohibited the States, are reserved the States respectively, orto the people. U.S. CONST. amend. all powerhad been delegated the United States through theCommerce Clause, reserving powers the statesjust would not make sense. The Constitution lays out these principles inference, but they are not less powerful for that reason: It not all unusual for our resolution significant constitutional question rest upon reasonable implications. Printz Mack, 521 U.S. 898, 924,
n.13 (1997).
The reach the federal government under the scope the enumerated power regulate commerce among the states extends much farther today than itdid originally. When the Constitution was written, commerce referred predominately exchange ortrade distinct from the agricultural manufacturing production those things that aresubsequently traded. Randy Barnett, The Original Meaning the Commerce Clause, Chi. Rev. 101, 114. (2001). The evidence suggests that the Commerce Clause was meant allow the federal government regulate trade between the statesrather than control all aspects the national economy. Id. However, starting 1937, the Court significantly expanded the latitude allowed Congress under the Commerce Clause. NLRB Jones and Laughlin Steel Corp., the Court found that Congress could regulate intrastate activities aslong they could said have substantial effecton interstate commerce: [a]lthough activities maybe intrastate character when separatelyconsidered, they have such close and substantial relation interstate commerce that their control essential appropriate protect that commercefrom burdens and obstructions, Congress cannot denied the power exercise that control. 301 U.S. (1937).
Then, 1942, with the case Wickard Filburn, the scope the Commerce Clause expandedeven further. 317 U.S. 111 (1942). Wickard, the Court held that Congress may penalize farmer for growing too much wheat his farm, even for his own intrastate consumption. Id. 118. The Court stated that the farmers activity could reached Congress long that activity, even trivial its own, could exert substantial economic effect taken together with that many others. Id. 125, 127-128. This principle allows Congress toregulate even seemingly trivial and insignificantactivities having substantial effect commerce. The scope extended far that seemedto allow Congress regulate any activity engaged inby Americans, long that activity could tied, however indirectly, the national economy. activity could too small and activity could too local. (See, e.g., Heart Atlanta Motel, Inc. U.S., 379 U.S. 241, 258 (1964) ([I]f interstate commerce that feels the pinch, does not matter how local the operation which applies the squeeze.)(citation omitted)). The reach the interstate Commerce Clause extended far seemed for long time that nothing could out Congress grasp. Several decades after this expansion the commerce clause, however, with the Lopez and Morrison cases, the Court showed that, for all the deference the Court was willing show Congress since the New Deal era, still the Courts duty topreserve some limits federal power. The question how apply limiting principle.
The Minimum Coverage Provision gives theCourt its last best chance provide limitingprinciple. refusing uphold the mandate, theCourt can defend liberty and federalism while distinguishing the cases Wickard and its progeny,which allowed Congress regulate and restrict activity, but never mandate it. true that the Court institution and the legal system whole have a stake the stability our Commerce Clause jurisprudence has evolved tothis point. Lopez, 514 U.S. 574 (Kennedy, J., concurring). This case would allow the Court finally delineate limit Congress powers underthe Commerce Clause while preserving the entiredoctrine has evolved this point. The Minimum Coverage Provision the first time thatCongress has not only prohibited, restricted orregulated the activity American citizens under thecommerce power, part its power regulate the national economy, but has actually gone far order entirely passive Americans enter into national market. Congress has reached beyond its previous power prevent virtually any activity chooses, long can argued that that activity would have substantial effect national economic activity, and adopts the position that has thepower also require virtually any activity chooses long that activity could have substantial effect national economic activity. After more than two hundred years functioning without the powerto order Americans into commerce, Congress hasmade policy choice now so. But, having founda new power, what Congress could with thispower limitless.
Petitioners spend many pages pointing out reasons why the health care market unique, anattempt reassure the Court that uphold the mandate would not allow Congress newpower with limits. Petitioners argue that virtually everyone needs health care some point.Petitioners point out that health care involves needs that cannot reasonably anticipated andbudgeted for and that costs can mount rapidly. (Petitioners Minimum Coverage Provision Brief at35, 36.) Petitioners note that Congress has enactedlaws requiring all hospitals stabilize patients whoarrive with emergency condition whether they can pay not. (Id. 40). These laws allow Americans who not insure themselves shift costs American society large, and the MinimumCoverage Provision stops Americans from exploiting such laws their favor. The Minimum CoverageProvision not stand-alone provision, but part comprehensive scheme economic regulation.However, for all the many arguments Petitionersmake about the differences between health care and everything that not health care, nothingPetitioners say provides limiting principle that thisCourt could apply future cases. Can Congressexceed the bounds its powers under the Constitution merely because dealing with apressing national issue? Can Congress expand its constitutional powers writing laws which create problems which cannot solved within previousconstitutional limitations, such laws requiring hospitals subsidize costs the indigent?
Yet while the health care market has features that make unique, could any market have features that make unique. Suppose Congressdecided require that every American purchase Chevy Volt. Such mandate might seem extreme and politically infeasible, but what Congress madethe argument that without the mandated purchaseof the Chevy Volt, given all the regulationsapplicable American car manufacturers, without amandate the American automotive industry wouldfall apart completely? Sooner later, everyAmerican ends needing transportation leastbenefits from the transportation others, canAmericans whole really said not engagingin commerce when they choose not buy car? Although the mandated purchase Chevy Voltmay sound like extreme imposition the libertyof American citizens, what grounds could the Court protect that liberty such purchase were designed integral part comprehensive scheme economic regulation, perhaps desire tocreate viable national economy electric cars within nation that finds electric cars undesirable. This hypothetical illustrates that, much theinterpretation the commerce power since Wickard allows Congress great latitude interfering with the liberty Americans, this expansion the commerce power would allow Congress infinitely more. There are infinite number activities, which, Congress required Americans engage inthem, would also address national economic problems and substantially affect interstate commerce.
Allowing the Minimum Coverage Provision tostand would pave the way profound change the relationship between Americans and the federal government, change every bit profound the change ushered Wickard. This change wouldalso take place the absence constitutional authority. limiting principle possible thePetitioners arguments are accepted. This logical implication has even been accepted courts below that were willing thus extend the Commerce Clauses power. We acknowledge some discomfortwith the Governments failure advance any cleardoctrinal principles limiting congressional mandates that any American purchase any product service interstate commerce. Seven-Sky Holder, 661 F.3d (D.C. Cir. 2011). true that, regards the Commerce Clause,the federal government has already been operating far outside the constraints its original meaning.In light the fact that interstate commerce has departed far from original intent, may seem daunting task prune back. But this case offers simple way start, provides brightline rule and does not require any previousprecedent overruled. Petitioners argue that anunprecedented limitation the commerce power should rejected and that there textual support the Commerce clause for [the] inactivity limitation. But the power grasped Congress unprecedented, any limitations that power wouldalso unprecedented. And there textual support allow the expansion the commerceclause even far previous case law allows, much less expanding its scope even further. Even the structure that developed commerce clause caselaw allows Congress more powers than the original meaning intended, preserving some limits Congress power closer the text the Constitution than preserving none would be.
Petitioners are wrong assert that the Minimum Coverage Provision a policy choice the Constitution entrusts the democratically accountable Branches make, and the Court should respect it. (Petitioners Minimum Coverage Provision Brief at24). The Court has taken the position since Marbury Madison, U.S. 137 (1803), that should notrespect the political branches government when they violate the Constitution and violate the constitutional liberties Americans. the Court declines protect liberty here, the service thestructure the Constitution itself, designed toprotect the individual liberties Americans through balance between federal and state power, why should the Court protect American liberties any judicial review context? Why should the Courtassiduously protect perceived liberties considerablyless tethered any written clause the constitutional text the due process context, but give entirely one the core concerns the Constitution, limited federal government? The federal balance too essential part our constitutional structure and plays too vital role securing freedom for [the Court] admit inability tointervene when one the other level Government has tipped the scales too far. Lopez, 514 U.S. 578 (Kennedy, J., concurring). With the Minimum Coverage Position, the federal government has tipped the scales too far and the Court must act.
CONCLUSION
For the foregoing reasons, Amicus respectfully requests that this Court affirm the Eleventh Circuits decision and hold that the Minimum Coverage Provision the PPACA unconstitutional.
Respectfully submitted,
Paul Orfanedes
Counsel Record
JUDICIAL WATCH, INC. 425 Third St, S.W., Suite 800 Washington, 20024 porfanedes@judicialwatch.org
(202) 646-5172
Counsel for Amicus Curiae
February 13, 2012